Which words bug your fellow attorneys and judges? In the last newsletter, I polled thousands of readers on what they think of “absent,” “ambit,” “instant,” and other language that Judge Posner and others have scorned. Find out which words get a thumbs-down—and which words your colleagues propose in their place.
Here are the results, from most hated to least:
#1. Instant – 3% approval.
Almost no one likes “instant,” as in “the instant case” or “the instant transaction.”
“This” was the most popular alternative, as in “this case.”
“Present” was the runner-up, with 21% approving. I myself prefer “here” to “in the present case.”
#2. Implicate – 10% approval.
My readers see vague implications in “implicate” and propose substitutes galore.
“Raise,” as in “raises privacy concerns,” was favored by 32%.
And “involve,” which to me is also vague, was preferred by another 13%.
#3. Absent – 13% approval.
“Without” won a whopping 65% approval as a replacement.
“In the absence of” took 18%. Yes, 18% of my readers would rather use four words than that odious single word “absent.”
#4. Ambit – 15% approval.
Readers call “ambit” both obscure and pretentious.
“Scope,” at 54%, was the clear crowd favorite.
“Area” and “bounds” both received 12% approval.
#5. Facially – 15% approval.
“On its face” was backed by 46% of my readers, who are no fans of half-baked adverbs. So “invalid on its face,” not “facially invalid.”
Another 12% of readers sided with “appears,” but just as many found “facially” superfluous.
#6. Progeny – 26% approval.
Although Posner and Scalia have many other disputes, Scalia, too, has railed against “progeny.” “And cases following it,” at 16%, was the most popular alternative when “progeny” is used for a line of cases. But what about “and subsequent cases”? Does that not make it clear that the later cases applied the first one?
#7. Prong – 27% approval.
Readers did not love this word, but they also had a hard time finding anything better.
“Factor” and “part” both seized 31% approval, as in “a three-part test.” I like them, too.
#8. Chilling effect – 65% approval.
“Chilling effect” was the only phrase in our poll that won a majority of my readers’ love, though even those happy souls prefer to limit the phrase to First Amendment contexts.
“Discourage” was preferred by 29% of readers.
And “chill” (as a verb, and not in the teenager sense of the word) curried favor with another 11%.
Do you have your own legal term or convention that you’d like me to poll next time? Just email me at ross@legalwritingpro.com and put “poll question” in the subject line.
